Deference to the Administration in Judicial Review in Australia

Abstract

This is the Australian report on the topic of judicial deference to administrative decision-makers, for the 2018 Congress of the International Academy of Comparative Law in Fukuoka, Japan.

Judicial deference is a topic that has its origins in North American jurisprudence. In Australia, Gageler J has identified alternative meanings for the concept: respectful regard for the judgment or opinion of another; and respectful acknowledgement of the authority of another. This paper explores deference in both respects by considering the nature of the decision and the identity of the decision-maker; privative clauses limiting judicial review; procedural fairness, fact finding about jurisdictional error and the standard of reasonableness in judicial review.

The strict separation of powers in the Australian Constitution has profound implications for the administrative law system and for judicial review in Australia. Judicial review is concerned with the legality not the merits of decisions under review. A court will intervene if it perceives there has been an error of law, but not otherwise.

The comprehensive statutory system of merits review undertaken by tribunals at both Commonwealth and State levels reinforces the distinction between legality and merits review. There is less impetus to expand judicial review where an alternative is broadly available. While the courts have eschewed the language of deference, in practice a great deal of deference is shown to administrative decision-makers, except on questions of law.